2000 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).‑‑This appeal will also dispose of connected Appeal No. 63 (K) of 1996 filed by Mr. Syed Shamshad Hussain Rizvi, as identical questions are involved.

2. On 7‑2‑1996, a notification was issued by the Housing and Works Division, whereby 24 Sub‑Engineers (Civil) in BPS‑16‑were promoted to the post of Assistant Executive Engineer (Civil) in BPS‑17 in the Pak. PWD Aggrieved thereby, the appellants filed a departmental appeal on 27‑2‑1996 and after waiting for statutory period of 90 day, they filed the present service appeals under section 4 of the Service Tribunals Act, 1973 on 24‑6‑1996. The main points between the appellants and the private respondents 5 to 20 and that both of the parties are diploma engineers and had joined as Sub Engineers (B‑I1) in Pak. PWD. There was a provision in the Rules of 1984 that 25 % posts of the Sub‑Engineers shall be filled in by promotion of the Diploma Engineers (B‑11) on the basis of qualifying the departmental examination and completion of ten years service. The private respondents though admittedly junior to both the present appellants qualified the said examination prior to the appellants and consequently they were placed in BPS‑16 earlier than the appellants. The appellants also qualified the said examination later and they were also allowed BPS‑16 accordingly. By the impugned notification, the private respondents have been promoted to the post of Assistant Executive Engineers (BPS‑17) and the appellants had challenged their promotion primarily supporting their cause on the basis of 1994 Rules.

3. Before touching the merits of the case, it would be appropriate to mention here that there had been several rounds of litigation amongst the employees of the Pak. PWD placed in B‑11/16. There are four categories of employees‑‑Firstly there are the Sub‑Engineers in BPS‑11 who are appointed directly by initial recruitment. Secondly, there are Sub‑Engineers who were promoted to BPS‑16 under the Rules of 1984. Thirdly, there are Sub- Engineers who have been placed in selection grade BPS‑16 under the Rules of 1992 and fourthly there is a cadre of Engineers in BPS‑16, called the Assistant Engineers. The disputes with regard to the determination of inter se seniority, quota, promotion etc. had been the subject‑matter of litigation in earlier rounds. For the purpose of disposal of the present appeals, reference to three sets of earlier appeals would be relevant. In 1990, certain posts of the Sub‑Engineers were redesignated as Assistant Engineer (BPS‑16 Gazetted) and the Sub‑Engineers challenged the re-designation apprehending the loss of seniority. Their service Appeals Nos.92 to 97(R) of 1990 were, however, dismissed. They filed appeal also to the Supreme Court and their Civil Appeals Nos. 33 to 38 of 1992 were disposed of on a statement by a representative of the Department and with the direction that the re-designation does not mean promotion nor does it affect the seniority of other employees in BPS‑

16. In 1994, a dispute arose between the diploma engineers (BPS‑16) with regard to their inter se seniority resulting in Appeals Nos. 397 (R) of 1995, 412, 413, 4301R) of 1995, 379(L) of 1995, 145(K) of 1995, 153 (K) of 1995, 157(x) of 1995, 1 (K) of 1996, 380 (L) of 1995, 448 (R) of 1995, 449(R) of 1995, 450(R) of 1995, 451 (R) of 1995 and 466(R) of 1995, and it was held that the Sub‑Engineers promoted prior to 1992 to BPS‑16 under the Rules of 1984 constitute entirely a different cadre than those who were allowed selection grade BPS‑16 under the Rules of 1992 and, therefore, it was finally decided that Sub‑Engineers who were promoted prior to 1992 to BPS‑16 were different then those sub‑Engineers who were placed in selection grade BPS‑

16. Their separate seniority lists are to be prepared on the basis of the said promotion and selection grade respectively and they shall count seniority from the date of joining BPS‑

16. Since the respondent department had prepared separate seniority lists and the said appellants demanded a combined seniority from the date of 'their joining service on initial appointment, therefore, their appeals were dismissed vide judgment dated 11‑6‑1996. The present appeals have been filed by two of the earlier several appellants. The present appellants Mr. Ghulam Mustafa and Syed Shamshad Hussain Rizvi, were the appellants in 145 (K) of 1995 and 157(K) of 1995, which were accordingly dismissed. We are told that the Hon'ble Supreme Court has granted leave to appeal in the said case. Meanwhile, the promotion of certain sub‑Engineers as Assistant Executive Engineers (BPS‑17) notified on 7‑2‑1996 was challenged in several Appeals Nos. 297, 303 and 305(R) of 1996, 803 (R) of 1996, etc. and these appeals were accepted by judgment dated 21‑12‑1996 whereby it was held that since the contesting parties were eligible for promotion to the post of Assistant Executive Engineers under the latest Rules, as all of them are placed in BPS‑16 and have rendered more than 13 years service in B‑11 and above, therefore, they were entitled to be considered for promotion with effect from the date for joining in BPS‑

11. It was also held that on their promotion, they will reckon their seniority, and their promotion will be deemed to be effective, from the date the private respondents were so promoted. Similarly, another Appeal No. 288 (R) of 1996 was filed about the inter se seniority and it was held therein that the appellant therein was senior to the private respondents although he qualified the departmental examination later and was allowed BPS‑16 later than the private respondents, however, by this delayed grant of selection grade, he cannot lose the original seniority and, therefore, he was entitled to reckon his seniority from the date of his joining the department in BPS‑11 and the seniority list of 1994 was ordered to be revised accordingly.

4. With this background in view, the present two appellants were heard in detail and the relevant Rules etc. were perused with the help and assistance of the learned counsel for the parties.

5. Before touching the merits of the case, once again we wish to have a recapitulation regarding the history of the Rules governing the contesting parties. In 1974 the Prime Minister took a decision that 25 % of total posts of the Diploma Engineers shall be placed in Grade‑

16. These posts should be filled on the basis of seniority‑cum‑fitness and subject to ten years service and passing the prescribed departmental examination. This office memorandum in the shape of executive instructions was later on incorporated in the Rules of 1984 wherein it was provided that "the qualifications and other conditions are laid down for appointment to the posts of Sub‑Engineers (B‑11) and (B‑16) in the Pak. PWD and it was further provided that the method of appointment to the post of Sub‑Engineer (B‑16) shall be by promotion of Sub‑Engineers (B‑11). However, in the conditions for promotion, it was provided, in accordance with the said directive of 1974 that "25 % of the total posts of the Sub‑Engineers shall be placed in B‑16 and shall be filled on the basis of seniority‑cum‑fitness from amongst the Sub‑ Engineers Diploma Holders having completed ten years service in the department provided that they have passed the prescribed departmental examination". These rules were later on amended in 1992 and it was provided that "33% of the total posts of Sub‑Engineers (B‑11) shall be placed in selection grade B‑

16. The selection grade posts shall be filled on the basis of seniority‑cum‑fitness from amongst the Sub‑Engineers who have completed ten years service in .the department and have passed the prescribed departmental examination". Thus, keeping in view both the rules, the judgments given by this Tribunals earlier, apparently conflicting nature, can be reconciled in a manner that prior to 1992 the placement of Sub Engineers from B‑11 to B‑16 was a promotion and not a selection grade, whereas after 13‑2‑1992 not only the quota of a placement 'in B‑16 was increased but the placement was changed from promotion to the selection grade.

6. However, the situation with which we are faced today is entirely different. In 1994, the earlier Rules for promotion to the post of Assistant Executive Engineer were changed and it was provided therein that 25 % of the posts of Assistant Executive Engineers (Civil;). in BPS‑17 shall be filled by promotion and that the persons eligible for such promotion to such posts shall be the Sub‑Engineers/Assistant Engineers having " 13 years service in B‑11 and above and having passed the departmental examination". Thus, with effect from 23‑1‑1994 all those employees working as Sub Engineers Assistant Engineers having 13 years service in B‑11 and above and having qualified the departmental examination shall be eligible to be considered for promotion to the post of Assistant Executive Engineer irrespective of any other consideration whether any one of such eligible persons was promoted to B‑16 or was allowed selection grade in B‑16 under the rules of 1984 or 1992. It is a general principle of interpretation of the statutes that the, plain reading of ‑the provisions, if unambiguous, is adopted sense without importing any extraneous provisions or considerations. If the Rules require that the condition of eligibility for promotion shall be based on the entire service rendered by a sub‑Engineer in B‑11 and above, we are at a failure to appreciate why any preference could the Sub‑Engineers placed in B‑16 on the basis of their dates of promotion to B‑

16. Nobody should claim to be wiser than the law or the rules If the competent Authority had considered to allow any priority, to those promoted earlier over those promoted late, or even if they were not so promoted, a clear provision could have been introduced. The intentional omission in the Rules to give any credit to the promotees in further promotion means that the authority did not intend to differentiate between both the two categories of Sub‑Engineers in B‑11 and B‑16 for the purpose of promotion as Assistant Executive Engineers (B‑17). Although both the J parties, i.e. the appellants and the private respondents are presently working in B‑16 and admittedly the appellants joined the service to B‑11 earlier than the private respondents but for the sake of arguments, we may take that even if any of the appellants was in such a position that he was still working in B -11, he should have been considered for promotion to B‑17 to preference to all the others subject to the only condition that he was senior to all of them and had passed the departmental examination, though recently. The private respondents might constitute an entire different cadre of promotees Sub Engineers and the appellants might constitute a different cadre of selection grade Sub‑Engineers and they may have their separate seniority lists for any other purpose for which the same may be relevant or which might be of any use prior to the enforcement of Rules of 1994, i.e. 23‑1‑1994. but here is no ambiguity in the Rules of 1994 and the promotion is to be based on the total length of service rendered by a sub‑Engineer in B‑11 and above. No preference or priority whatsoever can be given on the basis of the placement as civil servant in B‑16 or the date thereof.

7. The learned counsel for the private respondents had argued that the appeal was not maintainable as the appellants have not challenged the basic order dated 7‑2‑1996 and had only challenged the notification dated 11‑2‑1996 which was merely a posting and transfer order and not an order of promotion. He, therefore, urged that with the setting aside of the order dated 11‑2‑1996 the original order dated 7‑2‑1996 will still hold the field. We have perused the record and we do not agree with the argument for the reasons that to the departmental appeal as well as in the memorandum of appeal, the order dated 7‑2‑1996 read with the order dated 11‑2‑1996 has been challenged. The omission in the prayer is a typographical mistake only and cannot negate the entire contents of the memorandum of appeal. Similarly, the arguments that the appellants have not challenged the grant of selection grade of the private respondents neither challenged the seniority list and. therefore, the position of the private respondents being senior to the appellants has attained finality which cannot be reopened at this stage, is also repelled by the fact that the seniority list of 1994 is already sub judice before the Hon'ble Supreme‑Court and the grant of selection grade or promotion to B‑16 in the same cadre was merely an incentive and financial benefits on qualifying the departmental examination, and therefore, the appellants had no cause to challenge the grant of selection grade or promotion prior to their becoming eligible for the said benefit by passing the departmental examination. As stated earlier, the private respondents were senior in B‑16 and they could have been promoted to B‑17 prior to 1994 but with the amendment of the Rules effective from 23‑1‑1994, the basic condition of eligibility for promotion to B‑17 has been modified and based on the total length of service in B‑11 and above. Similarly, the argument of giving preference to the Gazetted Sub‑Engineers (B‑16) over non‑Gazetted Sub Engineers (B‑16) is also devoid of force because the provisions contained in the rules of 1994 are quite clear and unambiguous.

8. Consequently, we accept both these appeals and direct that the appellants deserve to be considered for promotion as Assistant Executive Engineers (B‑17) on the basis of their entire length of service in B‑11 and above, in accordance with the rules of 1994 and, therefore, we direct that C their cases may be placed before the appropriate DPC for consideration. On their promotion, they will be deemed to have been promoted with effect from 7‑2‑1996, the date when the private respondents were so promoted. No order is made for costs.